A little-noticed ruling last week from the Pennsylvania Supreme Court could upend hundreds of criminal convictions that grew out of traffic stops, and force the Philadelphia District Attorney’s Office to change how it prosecutes some defendants, lawyers say.

The appeal was brought by Marc Perfetto, 34, an ironworker from Northeast Philadelphia who was stopped in July 2014 for driving without headlights in the city’s Kensington section. An officer charged him with that offense as well as with driving on a suspended license and DUI. He was tried and convicted in Municipal Court’s Traffic Division for the summary offense of driving without headlights, and jailed because he had been on parole for a second DUI when he was arrested.

But before he could be tried for the July 2014 DUI, his attorney, Joe Kelly, filed a motion in Common Pleas Court claiming the trial would be illegal because Perfetto had already been tried on the summary offense in traffic court. Kelly argued that trying Perfetto for another offense from the same arrest would violate a state law that requires a prosecutor to bring at the same time all known charges against a defendant arising from a single criminal episode.

Ultimately, the high court agreed.

In its 5-2 opinion, the justices affirmed a decades-old state law known as the compulsory joinder statute, and acknowledged their ruling’s potential impact.

“We certainly recognize that our holding today may present the Philadelphia District Attorney’s Office with an administrative challenge; however, this court’s decision, as always, is guided by the law,” read the high court’s ruling, written by Justice Max Baer and signed by Debra Todd, Christine Donohue, David Wecht, and Sallie Updyke Mundy.

The ruling means the District Attorney’s Office cannot try Perfetto for the DUI. But lawyers say the ruling could ripple to affect dozens, if not hundreds, of other cases because traffic stops for moving violations often lead to other more serious charges, like DUIs or gun or drug possessions. Some have already started filing motions seeking to have their clients’ pending charges and convictions reviewed.

“It’s not about letting everyone run around with guns. It’s about fairness and doing what’s right and what’s legal and just following the law,” said defense attorney Bert Elmore, who said he will file challenges in six cases.

Ben Waxman, a spokesperson for District Attorney Larry Krasner, said the office is “still evaluating the decision to gauge its impact and how we want to respond.”

The issue is as much about process as it is justice.

Prior to 2013, it was permissible for a Philadelphia defendant’s summary offense to be heard in Traffic Court and misdemeanor and felonies offenses to be heard in Municipal and Common Pleas Courts. But since folding Traffic Court into Municipal Court, lawyers contend, Philadelphia prosecutors should be trying all of a defendant’s summary and more serious offenses together.

“Going forward, if they want to prosecute the DUI and the speeding ticket, they’ll have to put them together … There’s nothing stopping them from doing it, and from here on out, they will have to do that,” said Victor Rauch, assistant defender in the Appeals Unit of the Defender Association of Philadelphia. His office filed a 19-page brief with the Supreme Court in support of Perfetto.

Perfetto already had two DUIs on his record when he was pulled over July 3, 2014. Months later, he was tried and convicted in absentia in Municipal Court for the motor vehicle offense. But when the time came for his DUI trial in Common Pleas Court, his lawyer filed a motion claiming it was illegal under the joinder statute.

Common Pleas Court Judge Charles Ehrlich in July 2015 granted Kelly’s motion and dismissed the DUI charges. A Superior Court judge reversed that ruling and reinstated the DUI charges in August 2017. Kelly then turned to the state Supreme Court.

At issue was the state law which precludes a prosecution due to a previous prosecution for a different offense if four elements are present: the previous prosecution resulted in an acquittal or conviction; the pending prosecution arose from the same criminal episode; the prosecutor was aware of the charges in the pending case before the initial trial took place; and the crimes in both cases occurred within the same judicial district.

That last prong had once been limited to crimes adjudicated in “a single court” but the legislature broadened it to “district” in 2002, a change the Supreme Court suggested had created the confusion and factored into its decision.

“The Traffic Division is not a ‘court’ unto itself; rather, it is a division of the Philadelphia Municipal Court,” the majority wrote.

Justice Max Baer wrote the opinion in the Marc Perfettto case.
Justice Max Baer wrote the opinion in the Marc Perfettto case.

In a dissenting opinion, Chief Justice Thomas Saylor and Justice Kevin Dougherty argued that the joinder law enacted by the legislature was more likely intended to prevent someone from being prosecuted in two different court divisions for the same charge, not from different offenses that happened to be discovered or charged at the same time. The dissenters also argued that Perfetto’s case should have been exempt from the joinder statute because the hearing officer who found him guilty in traffic court lacked jurisdiction to hear the DUI case.

Defense attorney James Berardinelli, a former city prosecutor who is running for judge, said the Supreme Court’s opinion may lead to police issuing fewer traffic violations when motorists are also charged with more serious crimes. “I think the ruling is in accordance to what the rule says, so I agree with it,” he said.

Perfetto hasn’t stayed trouble-free in the years since. Court records show he was charged with driving violations and drug possession in Montgomery County in June 2016, and later sentenced to probation. Still, the court ruling in his 2014 arrest may have spared him years in prison.

On the night he was arrested, police said his blood-alcohol level was twice the limit to legally drive. Because it was his third DUI, he could have been sentenced to as much as five years in state prison if convicted, according to his lawyer.

Said Kelly: “He got a break.”